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Archive for February, 2009

The Texas State Commission on Judicial Conduct has filed formal charges against Judge Keller (harshly dubbed Judge “Killer” by proponents of her removal from office) of the Texas Court of Criminal Appeals. (In Texas, the Court of Criminal Appeals is the state’s highest court with respect to all criminal matters.) The disciplinary prosecution presents an interesting case of dueling trivial procedures, yet the real issue is anything but trivial.

Judge Keller is accused of the following sinister acts: While knowing that a death-row inmate’s lawyers were scrambling to seek a stay of execution because the Supreme Court of the United States had just agreed to decide whether execution by a particular lethal injection procedure was constitutional — and the inmate, Michael Richard, was slated to be executed that night by that same procedure — Judge Keller effectively denied the lawyers’ request to have the clerk’s office accept the motion to stay approximately twenty minutes late. She did so while knowing that other judges of the Court of Criminal Appeals were waiting to address the anticipated filing, yet she communicated nothing to them. Mr. Richard was executed that night, despite the fact that other similarly situated inmates were granted stays pending the Supreme Court’s decision and despite the fact that this same clerk’s office had accepted late filings in previous death-penalty cases. (Although irrelevant to the judicial conduct matter, the Supreme Court denied relief on the lethal injection issue six months later. See Baze v. Rees.)

Thus, it seems greatly due that Judge Keller is facing extreme scrutiny for this questionable conduct. One of the questionable aspects about the prosecution itself, however, is its focus (or to be more precise, the focus of the charging document). According to the charges, the violation of the Code, if any, is the failure to follow a local court rule concerning death-penalty cases. That rule requires, in short, that these last-minute, “execution day” matters are initially handled by one assigned judge (and Judge Keller was not the assigned judge for Mr. Richard’s case) and that if a non-assigned judge receives information about the case (as Judge Keller did concerning the late filing), such “communications regarding the execution shall be first referred to the assigned judge.” It is apparently undisputed that the lawyers’ communication about the late filing was never referred to the assigned judge. The prosecution certainly has a good argument that Judge Keller breached this local rule (although I have no information, one way or the other, whether the local rule was properly promulgated and routinely followed) – so much so that three out of the five charges rest exclusively, and the remaining two charges rest at least partially, on the violation of this local rule.But now we have each side hanging its hat on a technical procedural rule: The prosecution claiming that Judge Keller should have referred the communication to the assigned judge pursuant to the local court rule; Judge Keller undoubtedly claiming that the clerk’s office’s hours and means of accepting filings are bright and independent rules that must be followed in order to maintain an orderly and manageable filing system. But neither rule violation addresses the real problem with Judge Keller’s conduct; the local rule is simply a way to discipline the real problem by pouring the facts over an existing Canon. See Model Code of Judicial Conduct 2A (2004) (requiring compliance with the law), 3B(7) (requiring that each party be heard according to the law). The real problem is that Judge Keller was willing to (and in fact, did) let a man die despite a meritorious motion to stay so that her clerk’s office did not have to remain open an extra twenty minutes (or spend the mental capital to figure out an alternative filing solution; faxes or emails come quickly to mind). That is the unethical (indeed, seemingly inhumane) conduct, not the violation of a local rule. Were it the other way (i.e., if the inmate’s meritorious motion to stay was technically in violation of a local procedural rule banning twenty-minute-late filings on execution night), I would expect that a serious judge would look for an exception to the rule, and if none, perhaps even waive its application. I do not know, and it is not entirely clear from the charges, whether Judge Keller believed that her conduct violated the local rule; what I do know is that her actions violated virtually any meaningful notion of “integrity and impartiality.” Model Code of Judicial Conduct Canon 1; see also id. Terminology (defining “impartiality” and “integrity”). Leaving independence aside (although an argument could be made that even independence is at issue), those are the core duties echoed throughout every Canon in the Code. It is just somewhat perplexing that there is not a more direct disciplinary rule for this conduct. Any ideas? As it stands, it seems a bit like prosecuting Al Capone for income-tax evasion. Or is that comparison unjustified?

The above reservations notwithstanding, I do believe that this prosecution is a good start; that ensuring compliance with “execution-day” protocols is not just “trivial” procedure; and that practically speaking, it might be wise to prosecute the conduct most easily established in a disciplinary hearing, even if that conduct is a step or two removed from the real problem.

The Maryland Judicial Ethics Committee has issued an opinion advising that a judge may not ask a criminal defendant to divulge the defendant’s immigration status at sentencing or a bail hearing.Maryland Advisory Opinion 2008-43.The Committee emphasized that it was not rending an opinion on whether asking about immigration status violated substantive law.The Committee assumed that, as a matter of substantive law, a judge can consider a defendant’s immigration status if properly presented to the court.However, the Committee stated that asking about immigration status may implicate the privilege against self-incrimination, noting that “the general practice of Maryland trial judges is not to inquire of a defendant at sentencing except to clarify a matter presented and to invite the defendant to exercise the right of allocution.”The Committee also noted that a state statute requires that, before a guilty plea, the court, the state’s attorney, or the defense attorney must advise the defendant that, by entering the plea, the defendant, if not a United States citizen, “may face additional consequences of deportation, detention, or ineligibility for citizenship.” A note to that statute states that “the court should not question defendants about their citizenship or immigration status” to clarify that the statute “was not intended to put any burden on the judiciary to ascertain a defendant’s immigration status and that the advice of rights provision was added to aid the defendant in making a decision as to whether to plead guilty.”The Committee concluded:

It is public knowledge that there are millions of illegal aliens in the United States and that the issues arising from that fact are controversial, high-profile, and are perceived by members of the public as involving national origin, race, and socioeconomic status.Based on the above considerations, we conclude that reasonable minds could perceive an appearance of impropriety based on a judge’s inquiry as to immigration status, at sentencing or at a bail hearing.

Judicial campaign fund-raising was one of the major judicial conduct stories in 2008, as it has been in the past and no doubt will be in the future. Campaign contribution and spending records were set in state supreme court races in 2008. In Caperton v. Massey, the United States Supreme Court decided to take a case raising the issue whether $3 million spent by a company’s CEO in support of a supreme court justice’s campaign presents due process considerations when that company appeals a $50 million verdict to the court. The case prompted the filing of nine amicus briefs in support of the petitioner, most representing the position of several individuals or organizations, and five in support of the respondent (see www.brennancenter.org/content/resource/caperton_v_massey). Oral argument is scheduled for March 3, 2009.

Personal solicitation of campaign contributions led to judicial discipline in 2008, with a modern twist to some of the violations. A videotape on YouTube.com showed judicial candidate Willie Singletary telling riders at a motorcycle rally, after offering a blessing for the riders and their bikes, “There’s going to be a basket going around because I’m running for Traffic Court Judge, right, and I need some money. I got some stuff that I got to do, but if you all can give me $20 you’re going to need me in Traffic Court, am I right about that?” The judge further stated, “Now you all want me to get there, you’re all going to need my hook-up right?” He was elected, and the Pennsylvania Court of Judicial Discipline publicly reprimanded him for personally soliciting and accepting campaign funds, conduct “so extreme as to bring the judicial office into disrepute,” and violating the requirement that a judicial candidate maintain the dignity appropriate to judicial office. In re Singletary, Opinion (December 1, 2008), Order (January 23, 2009) (www.cjdpa.org/decisions/jd08-01.html).

The Kansas Commission on Judicial Qualifications ordered a judicial candidate to cease and desist from publicly soliciting campaign contributions after receiving multiple complaints that he had sent attorneys a cell phone text message that stated: “If you are truly my friend then you would cut a check to the campaign! If you do not then its time I checked you. Either you are with me or against me!” Inquiry Concerning Davis, Order (July 18, 2008). The Commission found that the candidate personally solicited campaign contributions and that the intimidating nature of the text message violated Canon 1. The candidate accepted the order.

Later in 2008, however, in a challenge filed by a sitting judge, the U.S. District Court for the District of Kansas held that the clause prohibiting judicial candidates from personally soliciting campaign contributions was unconstitutional. Yost v. Stout (November 16, 2008). That same conclusion was also reached by the U.S. District Court for the Eastern District of Kentucky in 2008 (Carey v. Wolnitzek, Opinion and order (October 15, 2008)) and the U.S. District Court for the Western District of Wisconsin in February 2009 (Siefert v. Alexander, Opinion and Order (February 17, 2009)). The Kansas court found that allowing solicitation “by a campaign committee does not assure that the candidate is unaffected or even unaware of who does and does not contribute to the campaign.” The court also stated that “garner[ing] public support and campaign contributions does not, in itself, suggest that candidates will be partial to their endorsers or contributors once elected” and “the recusal canon is narrowly tailored to cure any impartiality that may result from a candidate personally soliciting contributions.” The Kentucky court concluded that, “while it may be less difficult for a solicitee to decline a request for a contribution when the request is made by a committee, ‘the state does not have a compelling interest in simply making it more comfortable for solicitees to decline to contribute to judicial campaigns.’”

In February 2009, the U.S. District Court for the District of Minnesota upheld the Minnesota version of the solicitation clause because it allows a judicial candidate to personally solicit campaign contributions when speaking to groups of more than 20 persons or by signing a letter and requires a candidate to “take reasonable measures to ensure that the names and responses, or lack thereof, of those solicited will not be disclosed to the candidate . . . .” Wersal v. Sexton (February 4, 2009). The court rejected the plaintiff’s argument that the clause is unconstitutional because recusal is a less restrictive means of preventing bias, noting “the rash of recently filed petitions for Writ of Certiorari indicate that recusal may not be an effective method of preventing bias and ensuring justice.”

Lawyers can get judges in trouble and vice versa as recent synchronized lawyer and judicial discipline cases from Indiana and Ohio illustrate.

The Indiana Commission on Judicial Qualifications publicly admonished Judge Daniel Banina for entertaining and granting an ex parte petition for temporary custody without prior notice to the custodial parent or an opportunity for her to be heard.On the same day, the Indiana Supreme Court publicly reprimanded attorney Jeffrey Price, the attorney who filed the petition with Judge Banina.The petition had not alleged an emergency or certified the petitioner’s efforts to give notice to the mother or reasons why notice should not be required.Public Admonition of Banina (Ind. Comm’n on Judicial Qualifications Jan. 20, 2009); In the Matter of Price (Ind. Sup. Ct. Jan. 20, 2009).The Judicial Qualifications Commission stated:

In the Commission’s view, there is perhaps no greater injustice than to strip a parent of custodial rights without an opportunity to be heard and in the absence of an emergency.The Commission calls upon all judges and lawyers in Indiana to respect this fundamental notion, one the Commission and its counter-part, the Supreme Court Disciplinary Commission, attempted to convey now for several years, only to repeatedly address the same violation.

After a jury found a defendant guilty of two counts of aggravated murder and recommended a sentence of death, Judge Stuard asked Becker to prepare the court’s opinion sentencing Roberts to death, gave Becker his notes on the aggravating and mitigating factors, reviewed the 17-page draft opinion written by Becker and left on his desk, and relayed corrections to Becker.

During the sentencing hearing, defense counsel noticed that one of the prosecutors seemed to be silently “reading along” as Judge Stuard read his opinion from the bench, turning pages of a document in unison.The defense objected.In the sidebar discussion, Judge Stuard acknowledged that he had given his notes to the prosecution and instructed counsel to draft the sentencing order.On appeal, the Ohio Supreme Court held that the judge committed prejudicial error by delegating responsibility for the content and analysis of his sentencing opinion.

In 2008, as a result of state discipline proceedings, 12 judges were removed from office. In addition, one judge was permanently disbarred (effectively removing him from office), one former part-time judge was permanently barred from serving in any judicial capacity, one judge was found to be permanently disabled, one judge was permanently retired, and two judges were suspended without pay until the end of their terms. 11 judges resigned (or retired) in lieu of discipline pursuant to agreements with judicial commissions that were made public. 114 additional judges (or former judges in approximately 23 cases) received other public sanctions in 2008. In 77 of those cases, the discipline was imposed pursuant to the consent of the judge.

There were 12 suspensions without pay in 2008, with the length of the suspensions ranging from three days to three years (three suspensions also included censures; one also included a public reprimand and $2,000 fine). In addition, there were 17 public censures, 41 public reprimands (one also included a $7,780 fine), 28 public admonishments, four public warnings (one was a dismissal with warning made public with the judge’s consent), three cease and desist orders, two required public apologies, one case in which a judge accepted a commission’s finding that he had committed misconduct, and one decision ordering a judge to take corrective action. Bar discipline authorities sanctioned three former judges for conduct on the bench and two judges for pre-bench conduct. (For further details, click here.)

I presumably speak for the profession when I say that I generally hold the ABA Standing Committee on Ethics and Professional Responsibility (aka the Ethics Committee) in high esteem. That said, when it recently revisited the Model Code of Judicial Conduct, it reminded me how rare those visits can be. It appears that the Committee has directly addressed judicial ethics only two times in the last twenty-five years. (I did not check prior to 1984.) By any measure, then, the Code is suffering from a lack of attention. Interestingly, the Ethics Committee even has an adjunct component dedicated to Code insight, the Judges Advisory Committee. Interestingly as well, the only two opinions were both issued within the last two years. That is cause for optimism, as it seems that the current Committee (although the roster has changed slightly) is more sensitive to judicial ethics problems.

Your next question might understandably be — what problems managed to catch the Committee’s eye after all of these years? The first is Formal Opinion 07-449, which addresses both the Model Rules and Model Code. With respect to judges, the Committee concludes:

Pursuant to Model Code of Judicial Conduct Rule 2.11(A), the judge in . . . a situation [in which she is being represented in an unrelated matter by an attorney appearing before her] must disqualify herself from the proceeding over which she is presiding if she maintains a bias or prejudice either in favor of or against her lawyer. This disqualification obligation also applies when it is another lawyer in her lawyer’s firm who is representing a litigant before her. However, absent such a bias or prejudice for or against her lawyer, under Judicial Code Rule 2.11(C), the judge may continue to participate in the proceeding if the judge discloses on the record that she is being represented in the other matter by one of the lawyers, and the parties and their lawyers all consider such disclosure, out of the presence of the judge and court personnel, and unanimously agree to waive the judge’s disqualification.

If a judge is obligated to make disclosures in compliance with Judicial Code Rule 2.11(C), refuses to do so, and insists upon presiding over the matter in question, the lawyer’s obligation of confidentiality under Model Rule 1.6 ordinarily would prohibit his disclosing to his other client his representation of the judge without the judge’s consent, rendering it impossible to obtain the client’s consent to the dual representation, as required by Model Rule 1.7(b). The lawyer’s continued representation of the judge in such a circumstance constitutes an affirmative act effectively assisting the judge in her violation of the Judicial Code, and thereby violates Model Rule 8.4(f). The lawyer (or another lawyer in the lawyer’s firm), in that circumstance, is obligated to withdraw from the representation of the judge under Model Rule 1.16.

The second opinion, Formal Opinion 08-452, is even more remarkable, in that it addresses only judicial ethics. Although the opinion gives no clear cut answers, its conclusion is easy to summarize: “A judge who participates in fundraising activities on behalf of a court, including a ‘therapeutic’ or ‘problem-solving’ court, must limit the participation to activities permitted by Model Code of Judicial Conduct Rule 3.7(A). The judge also must ensure that her conduct does not violate Judicial Code Rules 3.1 [general limitations on extrajudicial activities], 1.2 [promoting confidence in the judiciary], or 1.3 [avoiding the abuse of the prestige of judicial office].” Perhaps the clearest answer is contained in Rule 3.7(A)(2), which permits direct solicitation for contributions “only when the persons being solicited are [a] members of the judge’s family or [b] other judges over whom the judge has no supervisory authority.”